CO/5111/2009 
Neutral Citation Number: [2009] EWHC 2458 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 22 September 2009
 
B e f o r e: 

FRANCES PATTERSON QC 
 (SITTING AS A DEPUTY HIGH COURT JUDGE) 
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Between: 
THE QUEEN ON THE APPLICATION OF WELLS 
Claimant

v 

PAROLE BOARD 
Defendant 
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Mr H Southey and Mr A Straw (for judgment) (instructed by the Cunninghams Solicitors) appeared on behalf of the Claimant
Miss H Stout (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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J U D G M E N T
1.	THE DEPUTY JUDGE:  This is an application for judicial review by the claimant, Mark Wells, of a decision by the defendant (the Parole Board) to fail to prioritise the claimant's post‑tariff Parole Board hearing.  The claimant seeks first, a mandatory order that the defendant consider whether the claimant's case is a priority; second, a declaration that the defendant's action or, more accurately, inaction is a breach of Article 5(4) of the European Convention of Human Rights; and third, damages.
2.	The matter came before HHJ Anthony Thornton QC, sitting as a Deputy High Court Judge, on 2 June 2009, who gave directions that the hearing be expedited and take place as a rolled‑up hearing.  The hearing took place on 23 July 2009.  
The background 
3.	On 18 July 2005, the claimant pleaded guilty to robbery and to a breach of an ASBO to which he was then subject.  He had some 28 previous convictions including robbery, wounding and affray, assault occasioning actual bodily harm and possession of a bladed article.  He was sentenced to IPP on 27 September 2005.  HHJ Martineau set a minimum term of two years and remarked:  
"If they do not release you, then it is an indefinite sentence; there is no guarantee you have release, but I would be very surprised ‑‑ since there are many cases far worse than yours of extreme gravity where somebody would be kept in custody for a very long period. I very much doubt if you are in that bracket. Whether you are released after 2 years, I do not know. It is a matter for the Parole Board and not for the court."
4.	The claimant's case was considered by the Parole Board on 17 August 2007 under section 28 of the Crime Sentences Act 1997.  At that time the claimant was a category B prisoner.  By a decision in writing, dated 11 September 2007, the Parole Board informed the claimant that it was not satisfied that the detention of the claimant was no longer necessary for the protection of the public.  As a consequence, the defendant did not direct that the claimant be released, nor that he be transferred to open conditions.  
5.	The decision letter recorded that the Offender Assessment System carried out in June 2006 indicated that the claimant had a high risk of reconviction and a medium risk of harm to the public.  It also recorded that to the claimant's credit his behaviour in prison was very good, that he was on an enhanced regime, and that he was co‑operative and well motivated to address his offending behaviour.  
6.	The decision letter concluded: 
"Whilst all report writers acknowledge your motivation and progress none support release or transfer to open conditions. In their view much work remains for you to do before you can be considered suitable for release or transfer to open conditions. With this assessment too the panel agreed. At present the risk you present to the public remains too high to justify release or transfer to open conditions, but the panel notes that your re‑categorisation from B to C is being considered. You need to continue to address the following areas of risk: instrumental violence, violence to the person, alcohol and drug abuse. A victim awareness course may also be helpful. You should continue to develop relapse prevention strategies and continue to provide negative VDT's."   
7.	The letter was attached to a letter of 24 September 2007 headed "Outcome of Parole Board Review".  That informed the claimant of the outcome of the Parole Board review and continued: 
"Your case will next be referred to the Parole Board for a provisional hearing to conclude in 18 months, February 2009 for the reasons attached."
8.	On 27 September 2007, the claimant's minimum prison term expired.  On 29 May 2008, the claimant was transferred to HMP Coldingley where he remains in detention as a category C prisoner.  He has not yet experienced category D, or open conditions.  
9.	In about August 2008 the Secretary of State referred the claimant's case to the defendant.  On 19 August 2008, the defendant requested HMP Coldingley to complete the claimant's parole dossier by 2 November of that year.  In fact, the defendant received the parole dossier on 7 January 2009.  As a result, the target hearing date was revised from February 2009 to May 2009 by the Intensive Case Management (ICM) member when directions were given on 23 January 2009.  The claimant's case was referred to an oral hearing because the ICM member thought there was a chance that he may be suitable for a move to open conditions or release.  The claimant's case was put forward for the May, June, July, August and September rounds, but was not regarded as being of sufficient priority to be listed.  
10.	As an indication of the scale of the problem facing the Parole Board in a listing exercise which was concluded in June 2009, 1,072 cases were put forward for listing, of which the defendant was able to list only 204 for August, the comparable figures for September are 1,077 and 301.  The Parole Board has been taking steps to address the backlog of cases awaiting a hearing.  Amongst those steps are the Parole Board (Amendment) Rules 2009, which provide the Board with greater flexibility in listing IPP cases, such as that of the claimant.  
11.	The amendments enable the IPP panels to be chaired by accredited panel members in addition to judicial members.  The Parole Board has recently trained a number of members as IPP panel chairs, who will shortly be accredited with more to follow later in the year.  In addition, the Parole Board has implemented, since the listing in June 2009, a prioritisation framework to aid listing of cases with the objective of ensuring that the most urgent cases are listed each month.  The framework stipulates that the policy is flexible and, in particular, where special circumstances are put forward by the prisoner for prioritisation the case must be put before the duty ICM member for assessment.  
12.	The prioritisation framework has been an integral part of the monthly listing exercise since its introduction.  If a claim of special circumstances is made by a prisoner, then the case manager will put that request forward to the duty ICM member.  If the request is granted, then the listing manager is informed and will take steps to expedite the case.  If the case manager does not consider that the reasons put forward by the prisoner amount to special circumstances, then the request will not be put forward to the duty ICM member and the prisoner will be informed that insufficient reasons have been submitted.  
13.	The claimant has suggested that his case should be prioritised.  First, the suggestion was made in a letter before claim on 22 April 2009.  At that stage the Parole Board had indicated that they were looking to list the claimant's case in July.  The claimant's solicitors made the point that there had been a delay of five months since February 2009, which was highly significant when one considered that the claimant's minimum sentence was two years.  Second, a further letter was sent by the claimant's solicitors on 30 April to the Parole Board which drew attention to the unlawful delay in listing an oral hearing, and the potential violation of Article 5(4) of the European Convention of Human Rights, and repeated the request for prioritisation.  
14.	Third, a letter was sent on 24 June 2009 to the Parole Board repeating the request for prioritisation in the light   of, firstly, the significant support for Mr Wells' release and so a strong prospect of success at the Parole Board hearing and, secondly, the remarks of Collins J in the case of Betteridge, on 23 June 2009, that where there are special circumstances this should be taken into account and so such cases should be prioritised.  Fourth, further letters were sent to the Treasury Solicitor on 1 and 7 July 2009 repeating the earlier request.  
15.	At the date of the witness statement from the claimant's solicitors of 8 July 2009, they had received no response appertaining to listing and the requisite exceptional circumstances, and the reasons why the Parole Board did, or did not, consider the claimant's case to be a priority.  
16.	On 21 July 2009, Nathalia O'Prey, Deputy Head of Case Work with the defendant, filed a witness statement to update matters from the earlier filed witness statement by Mr McCarthy on behalf of the defendant.  She elaborated upon the sheer volume of work facing the Parole Board and the backlog of cases as a consequence.  In relation to the claimant's claim of special circumstances, Miss O'Prey exhibited letters sent by the Treasury Solicitor, dated 29 June and 9 July respectively, which set out that there was nothing especially unusual in various report writers offering a degree of support for release which did not, as a result, constitute special circumstances so as to warrant prioritisation.  In fact, it was said, the claimant's case was like many others who were also awaiting hearings.
The relevant legal framework 
17.	"The 1997 Act  
"Section 28(5) of the 1997 provides: 
'As soon as‑ 
(a) a life prisoner to whom this section applies has served the relevant part of his sentence, 
(b) the Parole Board has directed his release under this section,  
it shall be the duty of the Secretary of State to release him on licence." 
    For the purposes of s.28, a 'life prisoner' includes a person serving a sentence of IPP (s.34 of the 1997 Act). Further, by s.28(1A), s.28 of the 1997 Act applies to a life prisoner in respect of whom a minimum term order has been made, and references in s.28 to the 'relevant part' of such a prisoner's sentence are a reference to that minimum term. 
    The giving of directions (as referred to in s.28(5)(b) of the 1997 Act) is governed by s. 28(6): 
    'The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless‑ 
(a) the Secretary of State has referred the prisoner's case to the Board; and 
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.' 
    Where (as in the present case) there has been a previous reference to the Defendant,  a prisoner may only require the Secretary of State to refer his case to the Defendant 'after the end of the period of two years beginning with the disposal of that reference': s.28(7)(b).
    The Human Rights Act 1998 
    By s 1(1) of the Human Rights Act 1998 ('the HRA'), Art 5 of the ECHR is a Convention right for the purposes of the HRA.  
    Section 6(1) of the HRA renders it unlawful for the Defendant (as a public authority) to act in a way which is incompatible with a Convention Right. 
    Section 8 of the HRA makes provision for judicial remedies in the event that a public authority acts unlawfully acts unlawfully by reference to s 6(1). By s. 8(3): ' No award of damages is to be made unless, taking account of all the circumstances of the case, including‑ ' No award of damages is to be made unless, taking account of all circumstances of the case, including‑ (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."
Submissions 
18.	Mr Southey, who appears on behalf of the claimant, submits that there has been a breach of Article 5(4) of the ECHR on the following grounds: 
(1) As the claimant was serving a short minimum term, time in open prison was less crucial;
(2) When the defendant last considered the claimant's case 23 months ago, the key concern was that the report writers said that there were matters that needed to be addressed which had been addressed in the interviewing period;
(3) There were special circumstances here which meant that the claimant was seeking to have his case taken out of order; and 
(4) The claimant says that if the court is unwilling to provide a finding, then the claimant can bring proceedings as a victim.
19.	Dealing with the defendant's complaints: 
(1) Mr Southey accepts the OASys Offender Assessment of high risk, but pointed out that that was well‑known to the Offender Manager, Gianna Blackman, who supported the claimant's release;  
(2) Prison Service Order 4700 makes it clear that there was no reason to spend time in open conditions on the part of a short tariff lifer; 
(3) Applying the case of Betteridge the defendant was a clear candidate for release and so the sooner that the claimant had a hearing the better; 
(4) The Parole Board approach not to place applications before a judicial member is unlawful.  It was for a judicial member to determine what are special circumstances and whether the case should be prioritised.
20.	The defendant accepts that the Parole Board system is not operated correctly and is unacceptable for the reasons set out by Collins J in the case of Betteridge.  The defendant relies on the steps that it has taken to improve the situation, the main elements of which I have set out above.  The defendant points to the increased number of cases listed since those improvements were implemented and, in particular, to the rise in numbers to 301 cases that have been listed for September hearings.  The defendant submits: 
(1) There is not as yet a breach of Article 5(4) and that the claim is one of the sort to be discouraged as a result of the judgment in Betteridge;  
(2) It is inappropriate to make an order that would enable the claimant to leap the other cases awaiting a hearing as the court does not have the details of all of the other cases awaiting a listing; 
(3) There is nothing unlawful in the way in which the Parole Board lists cases for hearing; 
(4) It is highly unusual to go from being a category C prisoner to release;
(5) The court does not need to entertain a claim that the claimant is a victim, as help is being given to assist everyone within the system.
Article 5(4) 
21.	Article 5(4) says as follows:  
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
In the case of R (on application of Betteridge) v the Parole Board [2009] EWHC 1579, which has featured large in the current proceedings, the Parole Board accepted that there was a breach of Article 5(4), although the Secretary of State did not.  Collins J considered the meaning of Article 5(4) in paragraph 22: 
"The reality is that Article 5(4) requires a speedy hearing to determine the lawfulness of the detention. It may well be that in a given case the hearing will, and will inevitably, decide that the detention is lawful. That does not mean that the hearing itself can be deferred beyond a period that can be properly regarded as speedy. Equally, there is jurisprudence, and not least the decision of the House of Lords in D v Secretary of State for Northern Ireland intervening [2008] 1 WLR 1499, that delays in having a hearing which result from the Parole Board's own reasonable actions, for example requiring further information, and indeed, so far as the Parole Board is concerned, independently of any attack upon the system as a whole, in dealing with the matter in accordance with the resources that it has, provided that it does the best it can. 'Speedy' does not indicate a particular period, and I accept entirely that it is fact sensitive. What may be required in a particular case may not be required in another, depending upon the circumstances. But, one has to see in an individual case what has been the cause of the delay. In this case the cause has been the lack of man power in the Parole Board which has meant that it has been unable to provide the necessary panel, which in the case of a lifer and in deciding questions of possible release because it is said that the individual is no longer dangerous, has to be a panel headed by a judicial member. That is hardly surprising having regard to the importance of ensuring not only that those who should be released are released, but that those who should not be are not released, and one is well aware of the public concern that a number of cases have given rise to recently in that regard." 
22.	It is quite clear that Article 5(4) provides a freestanding right for there to be a speedy hearing to determine whether the detention, or continued detention, in the case of somebody already detained is lawful.  It is fact sensitive and very much dependent on the circumstances in any individual case.  In the case of R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284 Buxton LJ considered periods of delay:   
"33. The arrangements envisage a period of delay of up to three months. While sensitive to the importance of not reading mechanistically from one case to another, one cannot escape from the fact that much shorter periods than three months have been condemned by the European Court of Human Rights: 
(I) In De Jong Baljet and Van den Brink v The Netherlands (1984) 8 EHRR 20, 40 para 58, the Court said of the ability of a detained serviceman to petition the Military Court that 'The fact that this remedy could not be exercised until at least two weeks after the arrest prevented the applicants from being able to obtain a 'speedy' decision, even having regard to the exigencies of military life'. 
(2) In Rutten v The Netherlands 24 July 2001, referred to in paragraph 20 above, which I have already accepted in the context of article 5(1) to involve issues and procedures very similar to those in our case, the Court appeared to be clear that a period of two months and 17 days was unacceptable. I am not persuaded that the Court was influenced in that consideration by the fact that the period limited by national law had been exceeded. 
(3) In E v Norway 17 EHRR 30, discussed in paragraph 24 above, the holiday period of 12 days appears to have been thought to be unacceptable in itself. 
(4) In Sanchez‑Reisse v Switzerland 9 EHRR 71 (see paragraph 23 above) delays of 31 and 46 days in determining requests to be released were found not to have been 'speedy'." 
23.	Notwithstanding the new listing prioritisation policy, the scheme imposes delays for reasons that are unrelated to the nature and difficulty of the particular case, unless it is exceptional in nature.  In the instant case the claimant was informed that his further review was to be concluded by February 2009.  That slipped to May 2009, due to the late receipt of the dossier.  Whichever date is taken, given that the claimant was serving a short minimum sentence and had been informed that a review would take place within 18 months of his first Parole Board hearing, in my judgment the delay in listing his case is a breach of Article 5(4).  I reject the defendant's argument that because the claimant is a post‑tariff prisoner there is, in the circumstances of this case, a greater latitude to the realisation of a speedy determination.  
24.	The question of what is speedy is always fact sensitive and, for reasons that I have set out, the facts are such here as to constitute a breach of Article 5(4) at the present.  As Stadlen J said in R (on the application of George Loch) v Secretary of State for Justice: 
"Thus, given that the prisoner's continued detention is only justified so long as it is necessary for the protection of the public, it is immediately apparent why the greatest importance has been attached to the need by means of speedy periodic reviews to eliminate so far as reasonably practicable the possibility of a prisoner remaining in detention when the legal justification for such detention by reason of his continuing dangerousness no longer exists."  
I deal with the consequential issue of relief below after dealing with the other challenges made by the claimant to the lawfulness of the defendant's decision.  
Lawfulness of the policy of listing cases by the Parole Board 
25.	The claimant argues that the Parole Board policy of listing cases is unlawful as listing is a judicial act and should be carried out by a judicial member.  The claimant submits that the use of an administrative ICM manager and case manager, to determine on a provisional basis what are special circumstances, is not what Collins J envisaged in Betteridge.  Therefore, the flexibility that Collins J thought the Parole Board were using as part of their new policy, and the implemented improvements, was not in fact deployed by the defendant.  The question of whether a case should be prioritised should be determined by a judicial member.
As part of that argument Mr Southey relied on the case of R (on the application of Michael Cooper) v The Parole Board [2007] EWHC 1292.  In particular, reliance was placed on paragraph 11, which says:  
"11. Listing in a court is regarded as a judicial function.  There is no reason of course why the administration should not fix an initial date provided that the system has been designed to ensure that that fixing is compliant with the law.  In many courts other than those dealing with criminal cases there is no particular time within which a case has to be heard.  If the matter is urgent that will be because of the individual facts of the case.  But the Parole Board is in a somewhat different position because of the requirements of Article 5(4).  That applies directly to cases such as this which involve recall of prisoners on licence.  It also applies to cases where prisoners have served their tariff and so become eligible for possible parole and in their cases too the authorities show that Article 5(4) is in play.  That being so, the Parole Board have a duty to produce a system which ensures that such hearings are dealt with speedily in accordance with Article 5(4).  If an application is made that a particular case needs especially speedy consideration, that is a matter which ought to be able to be taken into account.  As I say, listing in that context is a judicial function and so it is not appropriate that the matter is left entirely to untrained administrative staff.  There should be a system in place which ensures that an application is put, if necessary, before a judge and the necessary decision can be made. I recognise that there will be a burden if every application for a particular expedition has to be dealt with in that way.  The answer will be that it is only those cases in which there is some supportive material put forward.  It is not enough simply for it to be asserted by a prisoner that he needs a particularly speedy hearing.  There must be some basis for that application.  In this case, there was a basis because there was produced not only the letters from the doctor and psychologist but also the support of the probation service and of the Home Office.  It seems to me that in those circumstances there clearly ought to have been a process available whereby the Parole Board could consider, and properly consider, whether in the circumstances the hearing could be advanced."   
As Miss Stout said, the judgment in Cooper is to the effect that an application for expedition should be placed before a judge, if necessary, to do so.  That is where there is some basis in the form of supportive material to support the application for expedition.  Under the newly implemented listing prioritisation framework there is express provision for that full flexibility so that where special circumstances are put forward the case must be put before the duty ICM member for assessment.  
In the current circumstances there clearly is a process now available, unlike the position at the time of Cooper, whereby the Parole Board can consider whether in the circumstances the hearing can be advanced.  The outstanding issue is whether the current framework provides for proper consideration.  In my judgment it does.  The framework does not preclude judicial consideration if the ICM members think that is necessary.  It may be that the framework could be more clearly worded in that regard, but it is a framework and not an exclusive policy.  It provides adequate flexibility for appropriate consideration in prioritisation cases.
The Parole Board will only put a case forward for listing if there is a realistic prospect of success according to the witness statement of Miss O'Prey.  The defendant submits that it is not administratively workable to make a further assessment at the listing phase.  Each assessment at the listing phase takes up to three hours and the claimant's submission means that there will be further delay to that which is currently being experienced in the system.  
Further, such a system as the claimant advocates cannot operate fairly as it involves an assessment of the relative merits of all of the cases which are being put forward for listing, of which they are in excess of 1,000 each month.  In addition, the degree of risk to the public can change.  That is a matter for the Parole Board to assess at the date of the Parole Board hearing, whereas the reports are often written some four to six months earlier to list on the basis of what the reports say could therefore be unfair.
Those submissions echo the concerns of Collins J in Betteridge about the leapfrogging of claims.  Collins J found that it was inappropriate for an individual to make a claim for judicial review and jump the queue at the expense of others who do not.  As a result, he was not prepared to make any order on the claim before him.  He said:  
"31. In the light of what is being done, [ie by the 	Defendant to improve the system] it is not now appropriate for any prisoner to take proceedings against the Parole Board alleging breaches of Article 5(4) unless there are very special circumstances, something has gone badly wrong despite the new arrangements in that prisoner's particular case. It will not be helpful, either to the prisoner or to the court, if claims are brought which in reality, because of the existing situation, are not likely to achieve any sensible redress and merely add to costs. Of course, one has sympathy with those who may stay in prison longer than they perhaps, on one view, ought to. That is a thoroughly unsatisfactory state of affairs. But, equally, the court cannot do the impossible. We cannot make orders which are only going to create difficulties for others and are not in any way desirable, because, as I have already said, it is not helpful that prisoner A gets relief which may advance him in the queue but which inevitably means that prisoner B has a longer wait. As I repeat, absent special circumstances, claims of this nature should now be discouraged. But, this has at least brought home to the court, and enabled the court to make the point, that the situation that existed was unsatisfactory, potentially contrary to law, and the court welcomes the steps that are clearly being taken now to ensure that that situation does not continue."  
Those views were expressed in the full knowledge of the new arrangements of the prioritisation framework and the Parole Board (Amendment) Rules 2009.  Further, as is clear from Miss O'Prey's witness statement in the case of Betteridge, the issue requiring a judicial member to assess whether there was a realistic prospect of success was clearly before the court in that case.  Mr Southey argues that there is no reason why the Parole Board cannot consider test cases which others can follow, and that such claims will then be judicially led.  The problem with that is that all these cases are fact sensitive, so that it is difficult to conclude that that approach will resolve difficulties which are clearly endemic in the system.  
Further, Mr Southey argues that requiring judicial member involvement will not slow the system down, but, even if it does, that is no reason not to deploy the involvement of a judicial member if it minimises harm.  He contends that this issue was not central to the Betteridge case.  Yet further Mr Southey maintains that the claimant is a real candidate for immediate release, and that only a judicial member can determine that because of the appropriate expertise.  
To import an extra layer of assessment clearly has the potential to slow the system down.  Provided there is flexibility within the framework to seek recourse to a judicial member if necessary, that is sufficient to deal with exceptional cases which may, but will not necessarily, require a judicial input at the listing stage.  That is a very different position from introducing an extra layer of assessment as a matter of course, which would be the consequence of the claimant's submissions.  
In the particular circumstances of the claimant I find that the Parole Board operated the listing prioritisation of framework properly, and that there was nothing in the documentation available that made the case so exceptional a	s to warrant the case being dealt with in a different manner to that in which it was.  It is not unusual to have reports that are supportive.  This is not a case where it was made clear, for example, at the pre‑tariff hearing that the claimant was a real candidate for immediate release.  In those circumstances there is no need for me to deal with what can be described as the "victim arguments".
Relief 
26.	In the light of the judgment in Betteridge, it seems to me that the correct course, in the light of what I have said, is to make no mandatory order as sought.  In the light of my judgment, there is no need either for there to be a declaration in relation to Article 5(4), but I invite submissions on both of those matters.  As to the claim for damages, that was made in a comparatively lack lustre way by Mr Southey, and so again I propose to make no order on that claim. 
27.	I therefore grant permission to bring judicial review proceedings, but on the substantive claim make no order.  It is right to remark, by way of postscript, that the case of 
Allcock v Secretary of State has been brought to my attention.  That was a decision in which judgment was given on 2 September 2009.  There is no approved transcript available at the moment, but my understanding is that there was no express consideration in the judgment of the issue raised in this claim, namely whether it was lawful to refuse to refer the case to a judicial member for consideration to be given to prioritising the case.  
28.	In any event, the case of Allcock would not be binding on me, but it is right to note that I have been made aware of its existence.
29.	MISS STOUT:  My Lady, you have invited submissions on the question of relief.  I am not sure what I can say about it other than I agree with what you propose to do, which is to make no order and no declaration.  Of course the point in Betteridge was to discourage such claims for any purpose.  It seems to me it is appropriate to make no order on that basis. 
30.	THE DEPUTY JUDGE:  Yes, Mr Straw? 
31.	MR STRAW:  Just briefly, my submission would be that it is appropriate to make the order because, as Mr Southey put forward, the Parole Board has refused to accept that there was a breach of Article 5(4) in this case.  Therefore it would make a difference to this claim if a declaration is made because it will give them something else to think about in their prioritisation exercise. 
32.	THE DEPUTY JUDGE:  Mr Straw, during argument Mr Southey accepted that if I made it clear, in my judgment, that there had been a breach, which I have done, there was nothing further he could argue by way of seeking a further declaration.  I do not propose to make any order in those circumstances. 
33.	MR STRAW:  My Lady, there are a few other issues: first, I would like to apply for permission to appeal on the narrow point of whether it was lawful for the Parole Board to have a policy to refuse to refer matters to a judicial member on the basis of their prospects of success.  Very briefly the two grounds of appeal are: firstly, if that appeal does have a real prospect of success ‑‑ I do not think it would assist in repeating Mr Southey's arguments. 
34.	THE DEPUTY JUDGE:  No, I have set those out.
35.	MR STRAW:  The second ground is that it is a point of wider importance.  Given that over a thousand cases per month are going to the Parole Board, clearly this point will affect a broader number of claimants for parole. 
36.	THE DEPUTY JUDGE:  Miss Stout, do you have anything you would like to say? 
37.	MISS STOUT:  In my submission you should refuse permission to appeal.  This is a matter for the Court of Appeal to decide whether this is appropriate to go forward.  Your judgment is consistent with that.  There does not seem to be any realistic prospect of an appeal succeding. 
38.	THE DEPUTY JUDGE:  I think, Mr Straw, Mr Southey will have to make these arguments to the Court of Appeal.  I find there is no realistic prospect of success.
39.	MR STRAW:  There are two other matters in relation to costs.  The first is that it appears my learned friend and I accept no order as to costs would be the appropriate course of action.  I am not sure that is the position. 
40.	MISS STOUT:  We do accept it.  We had not discussed it, but we do accept it. 
41.	THE DEPUTY JUDGE:  I am not going to disagree with you both.
42.	MR STRAW:  The last order that we seek is detailed assessment of the claimant's publicly funded costs.
43.	THE DEPUTY JUDGE:  There will be no order for costs, but there will be detailed assessment of the claimant's costs.